Our Undemocratic Constitution

The Constitution is one of the most revered documents in American politics. Yet this is a document that regularly places in the White House candidates who did not in fact get a majority of the popular vote. Is this a recipe for a republic that reflects the needs and wants of today's Americans?

Thursday, February 7, 2008

How the Constitution is structuring the 2008 race

There are, of course, many ways that the Constitution will be structuring the forthcoming election, including, probably most importantly, the electoral college. This means that "electability" discussions inevitably (and properly, given the EC) focus on the ability to carry states (like Missouri) rather than simply to amass more votes than the opposition. But let me point to two other ways that the Constitution is extremely important:

1) The "natural-born citizen" clause. Does anyone doubt that if naturalized citizens were eligible to become president, then Arnold Schwartzenegger would be running a very active, and powerful, candidacy, probably as a Republican but perhaps as a truly strong independent? Indeed, I have had conversations with some colleagues on whether he would be barred from running for the Vice-presidency on a McCain ticket. The Constitution doesn't clearly say no, and one assumes that McCain would declare, upon choosing S., that he would strongly support a constitutional amendment that would allow S. to succeed to the presidency if circumstances required. I have been very critical of Senate Democrats for not getting behind such an amendment several years ago, when it was introduced by Republican Senator Hatch. They certainly couldn't oppose it this year, when it would properly be viewed as an "anti-immigrant" vote.

2) The vice-presidency. On July 1, 2007, I published a piece in the Boston Globe arguing that we were not well served by the current institution of the vice-presidency (for reasons going well beyond distaste for Dick Cheney). One reason is that presidential candidates of both parties have been tempted to engage in "electoral vote pandering" by picking a state or regional favorite who could conceivably have been thought to be the "best person" equipped to take over should anything happen to the President. My suggestion was that presidential candidates run completely on their own, with the winner then nominating someone to serve as VP, who would be subject to congressional confirmation, as with the current 25th Amendment.

I strongly suspect that John McCain would love such an option, for, unlike Clinton or Obama, who can't really be hurt by their choice of VP, McCain is in something of a pickle. If he rejects Huckabee simply because he's patently unfit to be President, then he alienates Huckabee's supporters and, especially if Obama is the nominee, risks losing some of the presumptively "red states." But, of course, picking Huckabee would doom his candidacy in those states who would not be taken by the further "Christianization" of our national polity. Picking Giuliani would be a disaster with the Huckabee voters, for starters. It would assure that leaders of the religious right, including James Dobson, would stay home in November. And, frankly, it's hard to think of many other Republicans waiting in the wings to be party unifiers. I don't think this is Jeb Bush's year!

Thursday, January 17, 2008

Students weigh in

I had the privilege of speaking in December to students at Medfield (Mass.) High School, who had been assigned my book as part of an extended unit on the Constitution. The unit culminated in a "constitutional convention" conducted by each of the three classes taught by Richard Desorgher, who had, I think tellingly, won an award for being Massachusetts' "teacher of the year" in the 1990s. I find the conclusions of the classes to be of great interest. As should be obvious, I am enthusiastic about some of the conclusions, less so about others. But the point is that these students were able to ask first-rate questions about the operation of our constitutional system and to come to their own conclusions. They represent reasons to have hope about the future, especially if they can be encouraged to carry their "active citizenship" into the future rather than become turned off from politics.

Their conclusions follow:

Period DExecutive Branch:1. The Electoral College was done away with and the election of thePresident will be by popular vote2. The president would run alone during the campaign and after elected would nominate a Vice President as outlined in the current 25th amendment. 3. Veto power would be taken away from the President. Bills sent to the President for his signing would go first to the Supreme Court to make there are no Constitutional issues.4. The President would only be able to pardon anyone with a majority vote of the Senate.5. Presidential “signings” on the bottom of laws would be prohibited6. The power of “recess appointments” would be denied the President.7. A candidate running for President would not have to be born in the U.S. but would at the time of his election have lived at least one half his life in the U.S.8. Example: a 40 year old candidate running for President would have tohave lived in the U.S. for at least 20 years.

Legislative Branch:1. The government would stay a bicameral government. With the House ofRepresentatives also serving a 6-year term.2. The use of the filibuster would remain in the Senate.3. Only Congress could declare war. The President could send troops anywhere only for 30-days before Congress would have to declare war or the troops would have to be pulled out.4. The newly elected Congress would take over one week after the date of the election and the President would take over the duties of the President one month after the election; making a shorter lame duck session.5. Agreements and treaties would both need 2/3 Senate approval in order to pass.6. The current amendment process would stay as it is currentlywritten.7. Ratification of the new Constitution would take some type of popular vote. Discussion was never ending and a consensus could not be reached.

Judicial Branch1. Supreme Court justices would have one 18-year term. At the completion of the term justices would receive full life pensions2. The process of appointing justices would remain the same as it currently is written.

Miscellany:3. Incompetent presidents could be removed from office with a 2/3 vote of both houses of Congress. A special election would be called. In the time between removal and the special selection, the current vice President would serve as Acting President. The new president wouldserve out the existing term of the removed president.4. In the event of the need of a military draft, both males and females would be equallycalled.5. There would be no special age requirements for any local, stateor federal office. The only requirement would be they be age 18 and older.

Period FExecutive Branch1. President would be elected by popular vote. The Electoral College wouldbe replaced2. The President and Vice President would run together as they currently do.3. The Executive branch’s power of veto, pardon, signings and recessappointments would be curtailed.4. You would not have to be born in the U.S. in order to run for President . You would just have to have lived here 18 years before you were inaugurated.

Legislative Branch1. We would keep the current bicameral system of government2. The Senate would keep its ability to filibuster.3. The President’s ability as Commander–in-Chief would remain the same.4. A newly elected President and Congress would begin their new term of office one month after elected. Taking over in the beginning of December instead of in January.5. The President would not have the power to make agreements. Agreements like treaties would require senate approval, as is currently in the Constitution.6. The amendment process would stay the same as currently in the Constitution

Judicial Branch1. Life-tenure would remain the same for Supreme Court justices

Miscellany1. Incompetent Presidents could be removed with a 2/3 vote of both housesof Congress. The Vice president would take over in the interim period. There would be a three month campaign-election period before the new president was elected.2. The military draft could take place but both male and females would equally be drafted but both parents in a family could not serve at the same time and different military jobs would be assigned for males and females.3. All age requirements for elected office would be eliminated. Any one could run for local, state or federal office as long as they were age 18 or older

Period G

Executive Branch1. President would be elected by popular vote2. The president and the Vice President would run together for office as a ticket, as they currently do.3. Power of the veto would be taken away from the president. He/she could only sent it to the Supreme Court to make sure it was constitutional.4. The President could only pardon with a 2/3 approval vote of the House of Representatives.5. Presidential signings would be eliminated.6. The President would no longer have the power for recess appointments. The president, however, could call the Senate back into session to consider an appointment.7. In order to run for President, one would have to be a U.S. citizen by age 19.

Legislative Branch1. Our government would remain bicameral.2. The Senate would keep the filibuster. A 2/3 vote could end the filibuster and the filibuster would have to actually take place, not just the threat of the filibuster.3. Only Congress could declare war. If the president wanted to send troops anywhere he/she would need a majority vote of the House of Representatives to do so4. The newly elected President and Congress would take over two weeks after being elected.5. Presidents would not have the ability to add signings to signed new laws they signed.6. The amendment process would remain the same except every 10 years a National Constitutional Convention would be called, chaired by the Chief Justice of the Supreme Court to consider and recommend to the Congress possible changes.

Judicial Branch1. Supreme Court justices would have life tenure but an 80% vote of theHouse of Representatives at any time could remove an” incompetent” justice.

Miscellany1. Incompetent Presidents could be removed by a 2/3 vote of both houses of Congress, with the Vice President taking over until the election of the new President. A one-month election session would be held to elect the new President. The new President would finish out the remainder of the term.2. The Convention could not come to a positive vote concerning the military draft.3. Anyone could run for a local, state or federal office upon reaching the age of 18

Wednesday, December 26, 2007

Compromise and utopianism

This is crossposted at balkin.blogspot.com, the address of Balkinization. It is a reply to a very thoughtful post by University of Maryland law professor and political scientist Mark Graber, as follows:

Professor David Adamany in an essay written many years ago maintained that one consequence of the FDR's Court-packing plan of 1937 was that Roosevelt lost vital political capital that could have been spent on other liberal reforms. Most scholars agree that after the failed Court-packing plan and the failed purge of southern conservatives in 1938, the momentum for the Second New Deal was largely over, not to be revived until the 1960s.

Roosevelt’s experience may teach two related lessons about politics. The first is that politics cannot be about everything at once. Political movements must choose their issues. Abraham Lincoln urged his former Whig followers not to raise tariff issues in order to maintain a united front against the expansion of slavery. Ronald Reagan during his first term downplayed opposition to abortion in order to maintain a united front in favor budget cuts. Roosevelt, by choosing to emphasize judicial reform, diverted vital resources from previous fights for economic equality. The second is that politics makes strange bedfellows. To paraphrase Churchill on his alliance with Stalin, he would make a pact with the Devil to fight Hitler (I’ve forgotten the exact quote). Roosevelt’s coalition of racist southern populists and northern workers (who, as Paul Frymer points out, were not exactly racial egalitarians) accomplished much good. Roosevelt’s effort to forge a purer coalition stalled his program completely.For the past year, my friend and co-blogger Sandy Levinson has called for a political movement for constitutional reform. He is correct to note that many features of the contemporary constitution are undemocratic and that others suffer from different flaws. The call for a political movement, however, entails more than the observation that the constitution is defective. Rather, participants in the political movement must believe the defects of the constitution are significantly worse than the other ills of American politics so that, in the political conflicts between political conflicts, constitutional revision ought to take precedence over questions of war and peace, economic reform, environmental degradation, etc. At the very least, political resources allocated to those political struggles ought to be diverted. This, of course, raises two questions. On what issues should diversion take place? Who should be diverted? Perhaps a political movement for constitutional reform can be done without diversion, but the Roosevelt experience in 1937 suggests that liberals who engage in constitutional reform pay liberal costs for diverting the electorate. At the very least, those who attend Sandy's call for suggestions to how to form this political movement ought to take seriously the costs to other desired political movements and either explain why the benefits will outweigh the costs or why, in fact, this movement for constitutional reform will, unlike any other, have no substantial costs for liberal goals.

It is, of course, hard to disagree with Mark's general point. All politics involves compromise and tradeoffs, and I have long believed that the enemy of achieving some real goods is a utopian commitment to achieving the best. So one response to Mark is to pick and choose and specific problems with the Constitution and concentrate on those. As regular readers know, my greatest concern these days is the costs of being stuck with an incompetent president/commander-in-chief, which strikes me as an issue of transcendent importance given the ability of same to make truly important decisions of war/peace, life/death. I don't like the presidential veto, obviously, but I'd put that off if there were any prospect of adopting a vote of no confidence. And, for all of my dislike of life tenure for Supreme Court justices, I'd put it at the bottom of the list, since it really doesn't threaten us in the way that an incompetent president can. BUT, and here is where things get truly tricky, if one is also concerned about the way that the present constitutional system makes it difficult to achieve a whole bunch of programs--I am interested primarily in "progressive programs," but I have suggested that political conservatives shouldn't be much happier with regard to achieving their own legislative goals inasmuch as they have them--then it is indeed necessary to start pulling at the thread of our constitutional system even at the risk of unravelling significant aspects of the status quo.

The peculiarity of FDR's situation is that he perceived himself, at least as of 1936-37, as having a compliant Congress that would pretty much follow his lead. He viewed the only impediment to achieving his program as the Supreme Court. Thus the Court-packing plan. We know now that he was living in something of a fool's paradise, that Congress was ready to break free of his reins and would do so after his disastrous attempt to "purge" recalcitrant Southerners in 1938, after which the New Deal was basically over. The next time the stars were aligned for significant change was 1964-66, a period that lasted even a shorter time than 1933-39.

So there may be a time when what appears to be "utopian" may actually be "realistic." Consider Mark's own list of "questions of war and peace, economic reform, [and] environmental degradation." Isn't it more and more clear that our coming to grips with any of these may require fundamental constitutional reform? Or, perhaps things aren't so dire as Mark suggests with regard to our really having to choose. After all, our present reality is that there are no mainstream politicians--and no real popular political movement--willing to ask the kinds of questions about constitutional fundamentals that one found throughout the Progressive period. And it might be that the fear of opening up what some view as the Pandora's box of constitutional reform would lead to the making of certain compromises that are not on the table today. After all, the 17th Amendment finally got through the Senate in part because of a fear that enough states would call for a constitutional convention on the issue of popular election.

Can the American political system really not run and chew gum at the same time?

Monday, December 24, 2007

Pluralities and majorities

Mort writes that he " cannot understand[my] need to dilute his argument by saying that, although George W. Bush, did not have a majority of the popular vote, neither did Bill Clinton, George H.W. Bush, Richard Nixon and whoever else. The question is not a majority of the vote, which would be nice, but a plurality - in other words, very simply, the MOST VOTES. George W,. Bush had neither the majority or plurality of the votes in 2000 but the others cited by Professor Levinson all had a pluralty."

I will be furious about the 2000 election, and Bush v. Gore, until my dying day, so I don't want to make light of his point. But I think it is a big mistake to assume that what happened in 2000 is necessarily the worst feature of the electoral college. One problem with focusing on Gore's narrow national victory (about 500,000 votes) is that we'll just never know what the result would have been had the campaign been run in a system of a single nationwide vote. That is, the election strategies are based on the electoral college itself, which explains Gore's decision to spend so much time in Florida in the last week of the campaign (as did Bush). In a truly national campaign, each would have tried to run up the national vote and return, perhaps, to their "base" states in an effort to encourage everyone to get out and vote, etc. I think we should be at least as equally bothered by the far greater statistical likelihood that we will send to the White House presidents who have ONLY plurality support, without majority support. By definition, this means that a majority of the country may well not have real confidence in him/her, including all-important confidence in his/her judgment regarding what most concerns me about presidents, which is their ability to make literally life-or-death decisions regarding war and peace. We'd be far better off with a French-type system of run-offs, or an "instant runoff system" called the Alternative Transferrable vote, used in San Francisco.

Imagine that George W. Bush had actually beaten Gore by a few votes nationally, but continued to have less than a majority of the vote (because of Nader and the other "third party candidates). I think we would have every right to be just as upset. Recall that Richard Nixon came in first, with 43% of the vote, in 1968. We'll never know, of course, who would have won in a run-off between him and Hubert Humphrey, but one can easily suspect that the consequences for the US might have been different in at least some important respects (beginning, most obviously, with appointments to the US Supreme Court).

Saturday, December 22, 2007

Recapturing the spirit of the Progressive Era

"Rachel" writes, "I am wondering if you are familiar with The Spirit of American Government by J. Allen Smith? He makes some of the same points about the constitution that you do."

The tactful suggestion that my arguments aren't original is absolutely correct. One of the points that I try to make, both in the book and when I give talks, is that I'm really trying to recreate a mood that was remarkably present at the turn of the 20th century and has almost disappeared today: a willingness to look unsentimentally at the Constitution and to ask whether it serves us well today. Smith's book was written in 1907. 1913, of course, would see the publication of Charles Beard's Economic Origins of the Constitution. More to the point (since I don't particularly share Beard's "founder-bashing") , serious critiques of the Constitution were being offered by Woodrow Wilson, the author of Congressional Government, and Teddy Roosevelt, who was supporting the initiative and referendum and was raising questions about judicial supremacy. The 'teens were a period of constitutional debate and change, beginningn with the 16th and 17th Amendments in 1913, which, taken together, help to explain, for better and, for some you, for worse, the rise of the modern national government, as well as the 19th Amendment that guaranteed the vote to women. The Prohibition Amendment is not well regarded by most people, though, as Robert Post has noted, it was supported at the time by many political progressives concerned about the social ravages of alcoholism, as conservative moralists. That it ultimately failed may tell us important things about the limits of government without necessarily impugning the motivations behind it.

Since World War II, however, there has been only one truly important Amendment, the 22nd Amendment designed to exact revenge on FDR by limiting presidents to two terms. And that was added in 1951, by definition well over a half-century ago. And, note well, it's a "structural" and "hard-wired" amendment. It has nothing to do, formally, with any of the hot button issues that divide us and is incapable of manipulation by clever manipulation to allow, say, Bill Clinton or George Bush to run for a third term regardless of what it says. As a matter of fact, I think we're probably better off with the Amendment that without it, given the power of modern presidents over the media, but I'd feel better if Congress could, by a 3/4 vote, suspend the Amendment if, for example, we were at war and the public had genuine confidence in the Commander-in-Chief who also had great diplomatic skills. Would anyone really have wanted to replace FDR in 1944, even if a good argument can be made that someone else should have become president in 1940?

It would indeed be a good thing if everyone read Smith and discussed what parts of his critique still apply and which parts have become truly outmoded.

Direct Democracy

One of the posters asks me my views about "direct democracy," i.e., going straight to the people and skipping what James Madison, among many others, believed was the all-important mediating role of elected representatives. My general preference is for representative democracy, precisely because, at best, elected representatives can take the time to become fully aware of the complexities of issues before voting on them. IF, however, one becomes disillusioned with representative democracy, as is all too possible in a political world dominated by money, then one can see something like the "initiative and referendum" or even "recall elections," which we in this country associate especially with California, as playing an important "safety valve" role. Many countries around the world combine direct with representative democracy. The most frequent user of referenda is Switzerland, which most of us, I presume, view as a sane and stable country (unlike the image that some have of California!).

I can't say I have fully worked out views about the role that direct democracy should play in our system. I'm confident, though, that it would properly become the subject of discussion (and ultimately decision) at a constitutional convention.

Bicameralism

I explain below that I am selecting out a number of responses to the Bill Moyers interview and responding to them specifically, in order to encourage more focused discussion on the particular issues that are raised.

Scott writes, "Okay, let's assume we were to eliminate the Senate," and then goes on to say that this would transfer much too much power to urban centers. I talk about "small states" in one of the following posts, but I want to specify that I have no desire to "eliminate the Senate." I think we're much too large a country to get along with a one-house legislature. I do believe that a number of small states should emulate Nebraska's example and shift to unicameralism; Jesse Ventura suggested that, altogether sensibly, for Minnesota, but the proposal went nowhere. But I think that Texas is already too large to make unicameralism desirable.

Also, even though I rail against the degree of disproportionate power held by small states in the Senate, I could easily live, as the result of a latter day compromise, with a more modest boost for small states. The "two-senator" bonus for the electoral college helps small states, but, obviously, it has significantly less impact than does the equality of voting power in the Senate itself. Larry Sabato, a political scientist from Virginia who has written a very interesting book, "A More Perfect Constitution," that also suggests constitutional reform and calls for a new convention, argues in favor of giving the largest states four senators, mid-size states three senators, and leaving small states at their current two. (This would also have the virtue, Sabato believes, of increasing the size of the Senate, which would be desirable given the incredible workload and sweep of issues that the Senate must consider.) I would still be unhappy if Wyoming had "only" 35 times the voting power of California instead of its present 70. But if, say, we ended up with the small states having 5-10 times the voting power, as part of a deal to get support for other desirable changes, then I would almost certainly sign on.

No one can believe in the possibility of a "perfect constitution." One is always going to have to compromise.